More on Equitable Discretion

Below are the six reasons given by Judge Bates as to why he would exercise his discretion to issue a ruling in the Miers case.  In my next post I will consider how these points may impact the parties as they go forward. 

(1)  judicial resolution would settle this dispute between the parties as to whether Ms.

Miers is absolutely immune from congressional process and whether Mr. Bolten must respond further. Resolution of the immunity issue will determine the next steps (if any) the parties must take in this matter.  

(2) contrary to the Executive’s suggestion that the Committee did notmake any serious counter-offers, the record reflects that it was the Executive and not the Committee that refused to budge from its initial bargaining position.  Mr.Fielding himself stated that the Committee had written to him “on eight previous occasions, three of which letters contain or incorporate specific proposals involving terms for a possible agreement.” The Executive, by contrast, apparently continued to adhere to its original proposal without modification. Thus, the “equity of the conduct of the declaratory judgment plaintiff” supports the exercise of the Court’s discretion in favor of the Committee. 

(3)  the record is fully developed for purposes of the issues presented by these motions. Significantly, immunity is strictly a legal issue, and it is the judiciary that must “say what the law is” with respect to that matter.  

(4) the parties are most surely sufficiently adverse. 

(5) both sides agree that this case raises issues of enormous “public importance.”  

(6) there is a strong possibility that this sort of dispute could routinely “recur.” Indeed, it already has: on July 10, 2008, former White House advisor Karl Rove asserted absolute immunity in response to a congressional subpoena and on July 30, 2008 the Committee voted to hold him in contempt.


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